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Can Obama stop enforcing DOMA?

Experts divided as legal challenges loom

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President Obama (Blade photo by Michael Key)

The announcement from President Obama last week that he believes Section 3 of the Defense of Marriage Act is unconstitutional and that he will no longer defend the law in court is raising questions about whether he can further help the LGBT community by discontinuing enforcement of the law.

Dan Pinello, who’s gay and a government professor at the City University of New York, said he believes Obama has the authority to stop enforcing Section 3 of DOMA, which prohibits the federal government from recognizing same-sex marriages, now that he has deemed the statute unconstitutional.

“If an order came down from the White House to start treating married same-sex couples like married opposite-sex couples, I think that would be honored in terms of bureaucrats sitting up and doing what he says,” Pinello said. “A president can seek not to enforce a statute if he believes, legally and otherwise, it’s unconstitutional.”

In the past, presidents have declined to enforce laws that they believe are unconstitutional, but such situations are rare. President Woodrow Wilson ignored a statute that conditioned removal of postmasters on Senate approval. In 1926, the Supreme Court struck down the the law as unconstitutional without making any suggestion that Wilson overstepped his boundaries by not enforcing the statute.

In 1994, then-U.S. Assistant Attorney General Walter Dellinger wrote a memorandum to then-White House Counsel Abner Mikva asserting the president “may appropriately decline to enforce a statute that he views as unconstitutional.”

“As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue,” Dellinger writes. “If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.”

But the memorandum examines whether a president can decline to enforce a statute in terms of whether the president has authority not to uphold a law recently approved by Congress. Dellinger states that if Congress is making progress toward passing a law that the president believes is unconstitutional, the White House should “promptly identify unconstitutional provisions and communicate its concerns to Congress.”

Such a situation would be different from what happened with DOMA, when the president determined the statute was unconstitutional nearly 15 years after a Republican Congress passed the bill and then-President Clinton signed it into law.

Jon Davidson, legal director for Lambda Legal, said there is “significant dispute” over whether a president can unilaterally decline to enforce a statute.

“When a president simply refuses to enforce the law, it’s not always clear that there is anyone who would have the legal ability to sue to require him to do so,” Davidson said. “This ability to exercise unilateral authority is troubling to many scholars.”

Still, Davidson noted that precedent exists for presidents to decline to enforce particular laws. For 25 years following its enactment in 1968, he said, every president refused to enforce a law seeking to make the Miranda case inapplicable to federal prosecutions until the courts struck down the law. Similarly, Davidson said numerous presidents refused to abide by laws allowing for legislative vetoes of presidential action, such as the 1973 War Powers Resolution.

For its part, the Obama administration seems intent on maintaining enforcement of DOMA even though the president has deemed it unconstitutional. In the case of Golinski v. U.S. Office of Personnel Management ā€” concerning U.S. Ninth Circuit Chief Judge Alex Kozinski’s order to give court employee Karen Golinski benefits for her same-sex spouse ā€” the Obama administration reiterates that it plans to continue enforcement of DOMA.

Kozinski ordered the U.S. government to answer questions about its continued refusal to offer Golinski federal benefits in light of its decision that DOMA is unconstitutional. On Monday, the Justice Department responded to Kozinski by saying that Obama is obligated to continue to enforce the law until either Congress repeals the statute or the courts strike it down.

“The President has determined that Executive agencies will continue to enforce Section 3 of DOMA, a course of action that accords appropriate deference to the Congress that enacted DOMA and allows the judiciary to be the final arbiter of DOMAā€™s constitutionality, as stated by the Attorney General,” the Justice Department states. “Moreover, as discussed, the Executive Branch has fulfilled its statutory obligation to notify Congress of the decision not to defend the statute and is committed to urging the courts to provide Congress with a full and fair opportunity to participate in the litigation of DOMA cases.”

Shin Inouye, a White House spokesperson, said Obama plans to continue to enforce DOMA even though he’s decided no longer to enforce the statute in court.

“Consistent with past practice when a president determines and announces publicly that a law is unconstitutional, the president has directed the Department of Justice to cease defending the law in court,” Inouye said. “Until there is a final determination by the courts of the lawā€™s validity or it is repealed by Congress, however, it remains the law of the land and the president will continue to enforce it as such.”

Many legal experts who are LGBT advocates are wary of the prospects of the president declining to enforce a statute ā€” even one as harmful to married same-sex couples as DOMA ā€” simply on the basis that Obama deems the law unconstitutional.

Nan Hunter, a lesbian law professor at Georgetown University, said no one believes more strongly than she that DOMA is unconstitutional, but cautioned against having the president stopping to enforce DOMA because “you have to look beyond your nose when you’re thinking about the ramifications of these sorts of decisions.”

“We do not want to live in a country in which the president can declare statutes to be unconstitutional because he doesn’t like them,” Hunter said. “That’s really not a place where any of us should want to live.”

To support the idea of a president ceasing to enforce a statute because the administration believes it’s unconstitutional, Hunter said she wants to see a guiding set of principles that would allow Obama to stop enforcing the statute while being consistent with the rule of law.

“I think everyone agrees that the criteria would have to be extremely limited so that such a situation would be extremely rare,” Hunter said. “Maybe someone could persuade that this fits into that very limited criteria, but I just haven’t heard any.”

Richard Socarides, president of the media watchdog group Equality Matters, said given the history of DOMA, the Obama administration would be “hard pressed” to decide unilaterally to stop enforcing DOMA.

“I just think it would be disruptive to the normal order of things,” Socarides said. “I’m sure that their lawyers made pretty convincing arguments that the more orderly way to do this was to await a definitive ruling from the court, which should be fairly quickly forthcoming based upon the government’s new position.”

Amid this debate, another LGBT advocate is drawing on the recent change in how the Obama administration is handling DOMA to press the administration to exercise prosecutorial discretion in cases involving bi-national same-sex couples.

Lavi Soloway, an attorney with Masliah & Soloway PC in New York, is representingĀ three married, same-sex bi-national couples in New York, New Jersey and California who are facing deportation proceedings.

Alex Benshimol and Doug Gentry are scheduled for a July 13 hearing in San Francisco;Ā Monica Alcota and Cristina Ojeda are scheduled for a March 22 hearing in New York; andĀ Henry Velandia and Josh Vandiver scheduled for a May 6 hearing in Newark, N.J.Ā Each of the American spouses in these cases has filed green card petitions on behalf of their foreign national partners, although DOMA prevents American nationals from sponsoring their partners.

“We intend to argue as a result of the shifting position of the executive branch with respect to DOMA that it’s appropriate for the immigration judges and also for the attorneys that represent the Department of Homeland Security to exercise what’s called prosecutorial discretion, which simply means exercising more discretion in how to proceed with these cases,” Soloway said.

In the three pending cases, Soloway is asking for judges to consider changes that were made to how the Obama administration is handling DOMA in court and to put off deportation proceedings until another time when different relief of legal options may be available.Ā According to Soloway, if anyone in these cases is deported, they won’t be able to return to the United States for another 10 years, even if DOMA is repealed or overturned sometime before then.

“I’m calling on the Department of Homeland Security … to develop reasonable innovative policy to deal with the particular moment that we’re in,” Soloway said. “We’re just in a very short-term moment where things are in a state of flux. I’m not asking them to stop enforcing any law; this is part of enforcing the law.”

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National

TransTech Social removing barriers to trans success

ā€˜Technology was the key to my freedomā€™

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From left, TransTech members B Hawk Snipes, E.C. Pizarro III, Ang R Bennett, and Adrian Elim. (Photo by Lexi Webster Photography)

It is common knowledge that women earn 84% of the average worker. Less common knowledge? Trans women earn 60% of the average worker. Trans men and non-binary people come in at around 70%, while 16% of all trans people make less than $10,000 annually.Ā 

E.C. Pizarro was lucky, and he knew it. He had a BFA in graphic design and had taught himself how to code. As a stealth trans man in a corporate job, he had access to a stable wage and good benefits. ā€œPeople that do not have experiences in corporate America or with equitable employment don’t realize [these things] are privileges that a lot of people don’t have access to.ā€ 

He wanted to give back and was gearing up to bring more volunteer work into his life by participating in a fraternity for trans men. When he went to a TransTech event and learned about the educational and career resources for trans people who face barriers to entering the workforce, he knew he had found his place. 

At the event he met, Angelica Ross. Yes, that Angelica Ross, of ā€œPoseā€ and ā€œAmerican Horror Story.ā€

Before she was Candy, Ross was a self-taught coder. She went from posing for an adult website to doing its back-end coding to teaching her trans siblings how to succeed in tech.Ā 

ā€œTechnology was the key to my freedom,ā€ Ross said in an interview with The Plug. ā€œTechnology took me from being exploited on someoneā€™s website to building my own websites and to building websites for other people and getting paid to do so.ā€

Pizarro was impressed and wanted to help. ā€œI went up to Angelica and I was like ā€˜Hey, I’m a trans man. These are my skills. I’m down to volunteer and do any type of workā€”the one caveat is that I’m stealth. You can’t tell anybody that I’m trans.ā€™ā€

For four years, Pizarro helped from mostly behind the scenes, sometimes getting side-eyed since people thought he was a cis man in trans spaces. ā€œI was still stealth as the Director of Social Media and Communications for the National Trans Visibility March in 2019,ā€ Pizarro says, chuckling a little.

But by that point, Ross ā€” who headlined the 2019 march ā€” was overextended trying to balance being a world-famous actress, advocate, and businesswoman. 

She needed someone to step in as executive director of TransTech and looked to the group of dedicated volunteers. Pizarro was elected by his peers to take the reins of the organization. 

This was a turning point for Pizarro. ā€œI’m very passionate about tech and for me a small sacrifice of being open with my trans experience to liberate other trans people,ā€ he said. ā€œI felt like if that’s something I got to do, then I’m gonna do it.ā€

And he did it. The infrastructure Ross put together worked: with mentorship, education, community, and networking with trans-accepting employers, trans people were gaining financial security and independence. 

So, Pizarro focused on expanding TransTech as widely as possible. ā€œWe have grown exponentially over the last three years,ā€ he says. ā€œWhen I took over in 2021, we had about 800 members based in the United States. Now we support over 6,700 members across 50 countries.ā€

TransTech is filling a demonstrated need within specifically the trans community. New research from LGBT Tech found that 68% of transgender adults use the internet to find LGBTQ-friendly employment (compared to 38% of cisgender LGBTQ+ adults). More than 70% of all LGBTQ adults use the Internet to access educational content.

Accessibility is central to the TransTech programming. Despite the growth, everything remains free. ā€œThereā€™s no membership fee. All of our programming is free. All of the certifications and educational resources are free,ā€ Pizarro says. 

They know the financial burden the trans community faces ā€” 29% of trans adults live in poverty. ā€œIf weā€™re asking anyone to up-skill [for a cost] and these are the things they are going through, we are asking them to invest in their future versus their meal today.ā€Ā 

Pizarro believes that accessibility is more than just making the training free. He wants the community to understand that tech work is something they are innately capable of doing. 

ā€œTransTech was built on the foundation of nontraditional tech. It’s not always coding. It’s graphic design. It’s social media. It’s video editing. It’s anything that uses a piece of technology and nowadays almost everything uses a piece of technology,ā€ says Pizarro.

He emphasizes to participants: ā€œYou’re in tech and you don’t even know it,ā€ pointing out how many already utilize tech skills like marketing and monetization with their social media accounts.

Some people involved in the programming are nervous about entering the ā€œtech worldā€ because of headlines about tech layoffs. He makes sure to emphasize that unlike in some other jobs, tech companies often pay generous severance packages, which gives employees ā€œbreathing room.ā€ Pizzaro explains that ā€œonce you have experience with one tech company, you can go someplace else and make a substantial amount of money as well.ā€ 

While TransTech is designed for the gender-diverse community, the programming is open to everyone Pizarro explains. ā€œWe just ask that you don’t be transphobic.ā€ (Or any of the other -phobics too, he says, listing them off.) He also emphasizes that this allows trans members who are not out to comfortably participate. 

Pizarro wants everyone to understand that they donā€™t just belong in tech, but they make tech better. ā€œTech is most profitable when you have diverse people building the tech and using the tech,ā€ Pizarro says. ā€œThere is an intentional funding as well as support to diversity tech because they understand how that impacts the product.ā€

He also reminds participants that they have developed transferrable skills in every part of their lives. ā€œI like to tell people if you can manage your life as a trans person in the United States or anywhere you can manage a project.ā€

Angelica Ross was a self-taught coder before she hit it big with ā€˜Pose.ā€™ (Washington Blade file photo by Linus Berggren)
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District of Columbia

Fire by arson forced temporary shutdown of Glorious Health Club

Spa and art gallery catering to gay
men expects to reopen in August

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(Photo from Glorious Health Club's Facebook page)

In a little noticed development, D.C.ā€™s Glorious Health Club, which bills itself as a spa, art gallery, and community center catering to gay men, was forced to close on May 19 after one or more unidentified suspects ignited a fire inside the club that D.C. fire department officials have ruled an act of arson. 

Robert Siegel, the clubā€™s owner, told the Washington Blade that he and investigators with the D.C. Fire and Emergency Medical Services Department believe one or more yet unidentified suspects broke into the kitchen of the former warehouse building where the club is located at 2120 West Virginia Ave., N.E.  

According to Siegel, investigators with the fire departmentā€™s arson squad believe a flammable liquid was used to start the fire in the kitchen and in two other locations within the building.

ā€œThree separate fires were started,ā€ Siegel said. ā€œThey started one on a staircase and one on the upstairs storage area,ā€ he said in addition to the one in the kitchen. He said about 40 patrons were in the club at the time the fire started, and all were able to leave without injury. 

Siegel said the fire caused $500,000 worth of damage to his building, with some of the damage caused ā€” understandably he said ā€” by fire fighters who had to rip open doors and break through the roof to gain access to the flames that engulfed parts of the interior of the building. He said he arranged for repair work to begin after the fire was extinguished.

ā€œI expect weā€™ll be reopening in about a month from now,ā€ he said. ā€œAnd weā€™ll be a bigger and better place.ā€

Fortunately, Siegel said, most of the artwork and art exhibits located in the club were not damaged.

ā€œIt was basically the kitchen, patio, and the roof,ā€ he said, adding that much of the solar panels he had on the roof were destroyed by the fire or by firefighters seeking to gain access to the building. 

ā€œAnd the fire was so hot it did structural damage to the roof,ā€ he said. ā€œIt actually melted steel. Weā€™re talking about 50-foot steel beams that have to be replaced,ā€ he told the Blade. ā€œThatā€™s $100,000 right there.ā€Ā 

Vito Maggiolo, a spokesperson for the D.C. Fire and Emergency Medical Services Department, said the fire was ā€œruled incendiary/arsonā€ and isĀ ā€œunder active investigation.ā€Ā 

It could not immediately be determined if one or more people responsible for the fire targeted the Glorious Health Club because itā€™s a gay community establishment. 

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National

House Republicans propose steep cuts in federal AIDS budget

Advocacy groups say move would eliminate ā€˜Ending HIV Epidemicā€™ initiative

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The Ending the HIV Epidemic initiative was launched during the administration of President Donald Trump.

The Republican-controlled U.S. House Subcommittee on Labor, Health, and Human Services, Education, and Related Agencies approved a spending bill on June 26 that calls for cutting at least $419 million from federal AIDS programs that AIDS activists say would have a devastating impact on efforts to greatly reduce the number of new HIV infections by 2030.

The subcommitteeā€™s proposed bill, which includes billions of dollars in cuts in a wide range of other federal health, education, and human services related programs, is scheduled to be considered by the full House Appropriations Committee on July 10. Officials with AIDS advocacy groups say they are hopeful that the full committee, like last year, will refuse to approve the proposed cuts in the AIDS budget.

The proposed GOP cuts would eliminate $214 million from the U.S. Centers for Disease Control and Preventionā€™s HIV prevention programs, $190 million from the Ryan White HIV/AIDS Program, and $15 million from the Department of Health and Human Services Secretaryā€™s Minority HIV/AIDS Program.

Activists say the impact of those cuts would kill the federal governmentā€™s Ending the HIV Epidemic initiative, which among other things, calls for reducing the number of new HIV infections in the U.S. by 75 percent by 2025 and by 90 percent by 2030. The activists point out that ironically the Ending the HIV Epidemic initiative was launched during the administration of President Donald Trump.

 ā€œInstead of providing new investments in ending HIV by increasing funding for testing, prevention programs, such as PrEP, and life-saving care and treatment, House Republicans are again choosing to go through a worthless exercise of cutting programs that the American people depend on and will never pass,ā€ said Carl Schmid, executive director of the HIV + Hepatitis Policy Institute.

ā€œWhile we vigorously fight these cuts, we look forward to working with the entire Congress in a bipartisan fashion on spending bills that can actually become law,ā€ Schmid said in a statement.

 Schmid noted that the bill also includes provisions known as ā€œpolicy ridersā€ that would take away rights and protections from women, such as access to birth control and abortion, and for minorities, including LGBTQ people.

According to a statement released by the office of Rep. Rosa DeLauro (D-Conn.), who is the ranking minority member of the House Appropriations Committee, one of the policy riders would ā€œblock the Biden administrationā€™s policies to ensure nondiscrimination on the basis of gender identity and sexual orientation.ā€™  The statement says another policy rider would ā€œprevent policies or programs intended to promote diversity, equality, or inclusion.ā€

Most political observers believe the Democratic-controlled U.S. Senate would also kill the GOP proposed policy riders and cuts in the AIDS budget if the full Republican-controlled House were to approve the budget bill passed by the appropriations subcommittee.

Rep, Tom Cole (R-Okla.), who serves as chair of the full House Appropriations Committee, released a statement on June 27 defending the  subcommitteeā€™s bill and its proposed spending cuts. ā€œThe bill provides appropriate and fiscally responsible funding to ensure these departments can continue to perform their core missions while also acknowledging the fiscal realities facing our nation,ā€ he said.

ā€œImportantly, the bill pushes back on the Biden administrationā€™s out-of-touch progressive policy agenda, preventing this White House from finalizing or implementing controversial rules or executive orders,ā€ Cole said in his statement. ā€œIt also preserves long standing bipartisan policy provisions protecting the right to life.ā€

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